Donald Jerry Barabash v. Her Majesty the Queen

(Alberta) (Criminal) (As of Right)

(Publication ban in case)




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Criminal law - Making and possessing child pornography - Private use exception - Application of R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, and R. v. Cockell, 2013 ABCA 112 - Whether the trial judge properly interpreted the “private use exception” contemplated in Sharpe.

The appellant was acquitted of one count of making child pornography and one count of possession of child pornography in relation to two teenage girls. The Crown appealed the acquittals, arguing among other things that the trial judge erred in law in his interpretation and application of the “private use exception” to the offences. Applying the Alberta Court of Appeal decision in Cockell, a majority of the Court of Appeal allowed the appeal and entered convictions for both offences. Berger J.A., dissenting, would have dismissed the appeal. In his view, to the extent that Cockell interpreted Sharpe to mean that separate and apart from the lawfulness or otherwise of the sexual activity in question, the evidence must show (and the accused must point to facts that establish) that a complainant’s consent was obtained in circumstances precluding exploitation or abuse, it was wrongly decided. Accordingly, Berger J.A. found that the “private use exception” was made out in this case and that the acquittals should stand.

Lower Court Rulings

February 14, 2012
Court of Queen’s Bench of Alberta

081337842Q1, 101344398Q1, 2012 ABQB 99
Appellant acquitted of one count of making child pornography contrary to s. 163.1(2) of the Criminal Code and of one count of possession of child pornography contrary to s. 163.1(4) of the Criminal Code
April 3, 2014
Court of Appeal of Alberta (Edmonton)

1203-0032-A, 2014 ABCA 126
Appeal allowed